At Balkinization, David Gans: Originalism in the Marriage Equality Cases. Here is an excerpt:
Jack recently highlighted a pair of dueling amicus briefs in the upcoming marriage equality cases, one filed by the CATO Institute and one by a number of “Scholars of Originalism,” that raise important questions about originalism as a form of constitutional interpretation. These briefs debate whether original meaning or original understanding has pride of place in constitutional interpretation, what Jack calls “yet another example of the continuing debates within originalism over who has the best version.” Jack argues that the back and forth in these briefs, and particularly the agreement that Romer v. Evans correctly interpreted the Equal Protection Clause, shows that “we are all living originalists now.” In a thoughtful, nuanced reply, Steve Smith, one of the professors who joined the “Scholars of Originalism” brief, agrees with Jack that “original meaning cannot simply be equated with ‘original expected applications,’” but otherwise resists the pull of Jack’s view of “living originalism.”
Other amicus briefs filed in the marriage equality cases do a deeper dive into the text and history of the Fourteenth Amendment, debating what the history shows. The brief filed by my organization, the Constitutional Accountability Center, lays out the original meaning of the Amendment, illustrating that the text, drafting history, and debates over the Fourteenth Amendment all demonstrate that the constitutional guarantee of equal protection establishes a broad guarantee of equality designed to protect all persons from state-sponsored discrimination. (The CATO brief covers some of this ground as well, though its brief focuses more on the development of equality principles in antebellum America). Under the text and original meaning of the Fourteenth Amendment, the Amendment’s guarantee of equality applies to all gay men and lesbians who wish to exercise their right to marry the person of their choice.
Posted at 6:47 AM